Filed 3/6/20 Reghabi v. J.P. Morgan Chase Bank CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ROSS KHOSRO REGHABI,

Plaintiff and Appellant,

v.

J.P. MORGAN CHASE BANK, N.A. et al.,

Defendants and Respondents.

B291574

(Los Angeles County

Super. Ct. No. LC103560)

APPEAL from a judgment of the Superior Court of Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed.

Ross Khosro Reghabi, in pro. per.; and Estivi Ruiz for Plaintiff and Appellant.

Dunbar & Associates, Kevin T. Dunbar, and Matt D. Derossi for Defendants and Respondents.

____________________

The plaintiff is a lawyer who once represented a borrower in default. The borrower wanted to renegotiate a home loan with his lender. The lender contacted the borrower directly, saying that, when the lawyer had been out of contact for more than two months, it was the lender’s policy to bypass the lawyer and to speak directly with the borrower. The lender explained it had left many messages with the lawyer, but had been permitted to speak only with the lawyer’s assistant, who was unable to make decisions on the account.

The lawyer eventually lost that client, who went on to renegotiate without the lawyer.

The lawyer then sued the lender for defamation and interference with contractual relations, alleging that, by bypassing and allegedly defaming the lawyer, the lender cost the lawyer his client.

The trial court sustained the lender’s demurrer to the lawyer’s first amended complaint. The court gave the lawyer 15 days to amend. The lawyer did not amend within those 15 days. When the lawyer finally filed a tardy second amended complaint, the lender demurred a third time. The trial court sustained this demurrer without leave to amend on a number of grounds, beginning with the lawyer’s failure to comply with the court’s filing deadline. We affirm because the lawyer concedes he violated the court’s order, which alone justified the court’s ruling under these circumstances.

I

We recount the factual setting.

A

The plaintiff is lawyer Ross Khosro Reghabi. Reghabi sued the lender and its representative, Thomas Latham. Latham negotiated on behalf of lender J.P. Morgan Chase Bank, which we refer to as “Chase.” For convenience, unless context is to the contrary, we refer to defendants Latham and Chase collectively as “Latham.”

The borrower (and Reghabi’s former client) was Alireza Torchizy, who owed Chase $448,314.54 on a note secured by Torchizy’s home.

B

Ordinarily the record on an appeal from a demurrer flows mainly or exclusively from the allegations in the operative complaint.

An unusual request for judicial notice takes this case out of the ordinary.

The request for judicial notice was for notice of nine transcripts of telephone conversations about loan negotiations.

Latham moved for the trial court to take judicial notice of these transcribed calls. Reghabi did not file an opposition to Latham’s request for judicial notice, and the court granted Latham’s request. Reghabi has not appealed this ruling about judicial notice, and indeed his opening brief to this court quotes these transcribed telephone calls.

Under these circumstances, the nine transcribed telephone conversations are valid parts of the appellate record.

These transcripts occupy 67 pages. The speakers on the telephone variously are Latham, Torchizy, Reghabi, and Steven Ruiz, a nonlawyer assistant to lawyer Reghabi.

We excerpt the nine transcripts.

1

The first transcribed call was on Wednesday, October 8, 2014. Latham called Torchizy on a recorded line.

The call began with Latham telling Torchizy the call was an attempt to collect a debt. Torchizy stated “my lawyer is in contact with you.” Latham asked for the lawyer’s name, and Torchizy said his name was Ross Reghabi. Latham asked “when is your attorney going to call me?” Torchizy said “most probably Monday.” Latham said “I look forward to talking to your attorney on Monday.”

2

The second transcribed call was on Friday, October 31, 2014. Latham called Reghabi’s office, asking for him. The call was transferred to his assistant, Steven Ruiz:

Ruiz: Hi Tom. This is Steven.

Latham: Yes, Steven. It’s funny that I’m speaking to you more than I’ve spoken to [Reghabi].

Ruiz: I know. I know. Tell me about it.

Later in the call, Latham said, “Well, if [Reghabi] had called me, we wouldn’t be having this conversation. . . . I think you can agree that I’ve made more than enough attempts to the — Mr. Reghabi and have not gotten one call back.

Ruiz: Yeah. I would agree with that.

Latham: I mean, I’ve done all I can do. I mean, what — tell me what I can do to get [Reghabi] to call me back and discuss the clients account. You tell me what I can do. . . . He knows — I’m sure he knows that I’m trying to reach him. You’ve — you’ve made an attempt to leave a message with him that I’ve called; right?

Ruiz: Yes.

Latham: Okay. I mean, you work with him. Do I need to do more than that? You’re closer to him than I am. . . . I mean, I can’t sit on this account. Again it’s been in default since August of 2011. The bank wants closure. . . . As far as we’re concerned, [Torchizy] owes the balance in full which is $448,314.54. . . .

Ruiz: All right. I’ve got nothing, you know, I’m — I’m as in the dark as you are.

Latham: Well, are you handling this or are you just speaking on his behalf or how exactly are you involved in this? Are you in a position where you can negotiate?

Ruiz: No, not at all.

Latham: Okay. Well, then — then, I mean, I’m not — I don’t mean to disrespect you because I do appreciate the fact you’re leaving messages. I mean, at least I hope that you are, but, I mean, I’m really not sure what your part in this is besides just leaving the messages if you’re in no position to negotiate or help me resolve this account this — this situation.

Ruiz: I wish I was because then it would be easier, but —

Latham: Oh, I wish you were too and, I mean, that because, I mean, I haven’t had any luck reaching Mr. Reghabi. I do realize that he’s busy, I understand that, but my time is just as valuable to me as it is to him and I’m — I’m making more than enough attempts to try to reach him. So what do I have to do to get in touch with the attorney? . . . It’s a very simple situation, Steven. The attorney is going to contact me or he isn’t. If he’s not, then there’s — we can’t contact the customer because he’s retained Mr. Reghabi so we don’t have any other choice. If the attorney is not going to return my calls, then I need to escalate this file as a nonpay. . . .

Ruiz: All right. Like I said, I’ll — I’ve made this impression on him before and I’ll do it again.

Latham: So you have actually spoken to him? Well, then why do you think he hasn’t returned my calls?

Ruiz: I don’t know. It doesn’t make sense. I don’t know.

Latham: Is that a fair question?

Ruiz: That is a fair question and my response is my honest response.

Latham: Okay. Fair enough. All right. . . . Steven, this is not personal towards you, it’s just that . . . I get a little frustrated because I think you would agree that I’ve made every attempt to reach Mr. Reghabi and I’ve gotten nothing in return and this account — I mean, a half million dollars — almost a half million dollars so the bank is taking this very seriously.

3

The third call was on Wednesday, November 5, 2014.

Latham called Reghabi. The two negotiated over Torchizy’s debt. On Torchizy’s behalf, Reghabi offered $60,000.00 to settle the $448,314.54 debt. Latham rejected this offer and said he would document the case as a refusal to pay.

4

The fourth call was on Monday, November 17, 2014.

Latham called Reghabi and spoke to Ruiz. Latham asked if Ruiz received Latham’s fax. Ruiz said he had. Latham asked Reghabi if Torchizy would be willing to offer to make a lump sum settlement of $73,972.18, which “would be the figure that I could submit; now, whether they approve it or not, it’s a different situation . . . .” Ruiz said “I’m going to say go ahead and try to resubmit that.” Latham announced this offer would be good only through Wednesday, November 26, 2014, but “I’ll resubmit it and see what happens.”

5

The fifth call was on Monday, December 22, 2014.

Latham called and asked for Reghabi. The call was transferred to Ruiz. Latham explained to Ruiz that Torchizy’s office called his office asking for Latham’s fax number. Latham told Ruiz that Latham could not speak to Torchizy because Reghabi represented Torchizy, but Latham asked Ruiz what Torchizy was trying to fax to Latham. Ruiz explained Torchizy was proposing a total payment of $63,000 paid over the next six months in six equal payments. Latham rejected this proposal and said “Mr. Ruiz, I’m not going to argue with you.” The call ended with each man telling the other to “[h]ave a great day.”

6

The sixth call was more than two months later, on Friday, February 27, 2015. Latham called Torchizy.

Latham: We’ve been trying to work with you for some time now. . . . We offered you a very generous settlement, you countered in payments which is not an option. There’s equity in the property so the bank is ready to move forward against the property. . . .

Torchizy: Now, look, I should see how I can pay. I don’t want to promise something that I cannot do it.

Latham: The bank wants closure on this. Mr. Torchizy, and this has been going on for quite some time. . . .

Torchizy: [Y]ou are bypassing my lawyer and talking to me, you know, I’m not a baby. I am — I have a big business here in California.

Latham: No, I respect that.

Torchizy: You bypassed — you bypassed my lawyer and came to me. . . .

Latham: Are you talking about right now?

Torchizy: Excuse me?

Latham: Are you talking about right now or before?

Torchizy: No, right now even if I have that lawyer on the case.

Latham: No, we don’t have him on the account anymore because as far as Chase — and I want you to understand this — as far as Chase policy is concerned, this is Chase policy. . . . If we do not have contact with the attorney in over a two month process, we can get rid of that attorney . . . and we can contact the customer. We have not — I’ve left many messages with Mr. — with the attorney and all we’ve spoke to was his assistant, [Mr.] Ruiz who was unable to make any decisions on the account so that being the case, we figure well, what’s the point. We’ll just talk to you.

Torchizy: You know, you know, I wanted to resolve this issue. Okay? And I am ready to resolve this —

Latham: What’s your offer? We can’t do payments and — we can’t do a settlement in payments. . . . It would have to be a one time payment.

Torchizy: Okay. Send me a letter and give me a lump sum that I can pay it, I would do that.

Latham: Well, we did that already and you — you — you changed it around so you tell me what you can pay and we’ll go from there. . . .

Torchizy: See, either I go month-to-month or I cannot pay more than the 45, 46 if I wanted to pay lump sum, you know, I cannot.

Latham: Okay. Well, then those aren’t options so I’m just going to . . . Those aren’t options. . . . The bank is not going to take a $45,000 settlement from you. . . . You have to understand, your account is in default. You’ve been in default since August of 2011 almost four years. . . .

Torchizy: Now — now, I cannot — I say cannot.

Latham: Okay.

Torchizy: Few days I call you back.

Latham: Okay. Fair enough. I’ll give you that so I need to hear back from you by Friday.

Torchizy: Okay.

Latham: That’s a whole week.

Torchizy: Okay. Thank you.

Latham: Fair enough?

Torchizy: Yes.

7

The seventh call was on Monday, March 9, 2015. Torchizy called Latham, who greeted Torchizy and said he recalled their last telephone conversation, which Latham said “didn’t go very well.”

Torchizy: I — yeah. I wanted to pay my payments, you know, I don’t want it to be late or in bad position because my credit is not bad — it’s not good. . . .

Latham: So the only way to resolve it is — is — is to possibly through a settlement or, I mean, I’ve already put a red flag on your account because of our previous conversation so . . . The only thing they’re going to do is the last offer was 73,000 and, you know, I’m going to have to fight to get that approved for you because that was on offer that was extended to you in December and you — you didn’t take advantage of it so you reduced it and you wanted it in six payments and that’s not going to happen. That’s not what a settlement is. You owe the bank almost $450,000, they want that in a lump sum.

Torchizy: I remember the offer was 16 something —

Latham: No, it was 73 because I have it.

Torchizy: Look, how much — how long you can extend my time . . .

Latham: Through the 26th of this month, that’s the next to the last day of the month. That would be it because the bank is ready to move forward. You have to understand. You were extended this in December and it didn’t happen for whatever reason. If I resubmit this, they’re going to want the money this month. . . . What I’m trying to explain to you, I know you’re very intelligent person because you are a doctor. I get that. Okay. This is nothing like what you do. The fact of the matter is, you’ve allowed your house to go into default, there’s equity in the property where the bank can get a full payoff, the 73,000 was offered to you back in December; for whatever reason, you didn’t take advantage of it. . . . What I’m telling you is offers don’t go down, they go up and what I’m going to submit is the 73,000, but if you’re asking for the bank to give you more time until April, it will go up.

Torchizy: Yeah. You know, you do your — please do your best to extend it April 16th; if not, please send me the papers for this month.

Latham: Okay. . . . If you want more time, I’m telling you it’s going to be more than 73. That’s all I’m trying to explain to you.

Torchizy: Okay. I understand.

Latham: Time is money in this business. . . .

Torchizy: I — I tell you very simply, I say if — if the bank is . . . I pay 73 for April 16 is okay. If not, send me the paper for 73 by the end of this month.

Latham: Okay. That’s what I’m going to do then. I’m going to send you the paperwork for the 73 by the end of this month.

Torchizy: Okay.

Latham: Okay? Do you — do you —

Torchizy: Okay.

Latham: Do you want me to fax it to you or you want me to fax it to Mr. Reghabi?

Torchizy: No, no because now I am talking to you —

Torchizy then gave Latham his fax number.

8

The eighth phone call was on Tuesday, March 31, 2015. Torchizy called to give Latham bank routing and account numbers. There was no mention of Reghabi.

9

The ninth call was on Thursday, April 9, 2015. Torchizy called Latham to discuss Torchizy’s payment to the bank. There was no mention of Reghabi.

C

Reghabi sued Latham and Chase on November 10, 2015. The five counts were for slander, intentional and negligent contract interference, and intentional and negligent interference with prospective economic advantage.

The trial court sustained the defense demurrer.

Reghabi filed his first amended complaint.

The trial court sustained the defense demurrer to the first amended complaint, granting leave to amend except on Reghabi’s third claim for negligent interference with contractual relations.

This ruling was July 25, 2017. The court ordered Reghabi to amend within 15 days.

Reghabi did not file his second amended complaint within the court-ordered 15 days.

On August 31, 2017, Reghabi filed his second amended complaint.

Latham demurred. The first ground in his demurrer was that Reghabi failed to file within 15 days, thereby violating the court’s order and making the second amended complaint “void in its entirety.”

Reghabi’s opposition brief admitted Reghabi missed the court’s filing deadline. Reghabi wrote that his error was mistaken and not intentional and he “pray[ed] the Court would not dismiss the complaint. (California Code of Civil Procedure 473.)” That was the extent of Reghabi’s argument on this point.

In reply, Latham argued that Reghabi’s opposition brief was tardy and had left Latham only two business days to draft his reply. Latham argued Reghabi had demonstrated “a pattern of conduct” of “skirting the laws” and of dilatory conduct. “The violations of law keep adding up,” Latham claimed, listing a range of problems including Reghabi’s 2010 suspension from the practice of law, and a second suspension in 2011.

Latham also argued Code of Civil Procedure section 473 offered Reghabi no protection. Reghabi had not complied with this section’s procedural requirements — for instance, there was no sworn declaration of fault. More fundamentally, Latham noted this section does not apply to an attorney representing himself. Because Reghabi “cannot sue himself for legal malpractice, there is no additional litigation for this provision to discourage.”

The trial court heard oral argument on this demurrer on May 7, 2018. Apparently neither party retained a court reporter.

The court sustained the demurrer without leave to amend. The court’s order listed problems with the second amended complaint, beginning with Reghabi’s failure to amend his complaint within the 15 days ordered by the court.

II

We affirm the trial court’s ruling because Reghabi admits he violated the court order requiring him to amend within 15 days. (See Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 611–615 (Leader).)

We review this issue for abuse of discretion. (Leader, supra, 89 Cal.App.4th at p. 612)

The trial court’s ruling was proper. A trial court has authority to strike pleadings not filed in conformity with its earlier ruling. (Leader, supra, 89 Cal.App.4th at p. 613.) Reghabi’s failure to file his amended complaint within the time specified subjected his entire action to dismissal in the court’s discretion under section 581, subdivision (f)(2) of the Code of Civil Procedure. (Ibid.) Reghabi’s presentation of his belated complaint did not cut off the court’s ability to dismiss his action. (Id. at p. 614.) This trial court accomplished the proper end of dismissal by sustaining Latham’s demurrer on the ground that Reghabi’s tardy filing violated the trial court’s order.

In oral argument, Reghabi conceded the trial court could treat Chase’s demurrer as a motion to strike.

Reghabi attacks the trial court’s ruling with two brief and invalid arguments.

The first invalid argument is that Latham has not filed a cross-appeal and has “likely waived any argument concerning Reghabi’s late filing of the appeal.” We italicize “appeal” because, based on this section’s heading, we presume this is Reghabi’s typographical error and that he meant to assert Latham has waived any argument about Reghabi’s late filing of his second amended complaint.

So understood, Reghabi’s argument fails, for Latham amply pursued his attack on Reghabi’s tardy filing in the trial court. Latham did not forfeit this point. Nor was there any need for Latham to file a cross-appeal.

Reghabi’s second argument is that the trial court excused his late filing and “forgave Reghabi when the trial court ruled on the substance of the demurrer.” This argument has no basis in the record. The trial court forgave nothing. It sustained Latham’s demurrer on every point, beginning with Reghabi’s failure to amend within the time the court had ordered.

The trial court ruled in Latham’s favor for many independent reasons. The fact the first ground is independently sufficient to support the trial result signifies we need go no further in our analysis.

In reply, Reghabi cites Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827–828 (Gitmed), which is inapplicable. The Leader court distinguished Gitmed. (Leader, supra, 89 Cal.App.4th at p. 614.) We do as well, for Gitmed involved an extreme situation. A defendant moved to dismiss a complaint without any notice to the plaintiff — an obviously unfair practice “not condoned by this court.” (Gitmed, supra, 26 Cal.App.4th at p. 829.) The Gitmed opinion chastised the trial court as “remiss” for not requiring defense counsel even to call plaintiff’s counsel and give notice of the defense’s ex parte application. (Id. at p. 826, fn. 3.) By contrast, Chase gave Reghabi proper notice of its position, which Reghabi debated on the merits to the trial court. Gitmed thus has no bearing here.

We deny Reghabi’s motion to augment the record.

DISPOSITION

We affirm the judgment and award costs to Chase and Latham.

WILEY, J.

We concur:

GRIMES, Acting P. J.

STRATTON, J.